25:0622(50)NG - AFGE, National Council of SSA Field Operations Locals and SSA -- 1987 FLRAdec NG

[ v25 p622 ] 25:0622(50)NG
The decision of the Authority follows:

25 FLRA No. 50
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
NATIONAL COUNCIL OF SSA FIELD
OPERATIONS LOCALS
Union
and
SOCIAL SECURITY ADMINISTRATION
Agency
Case No. 0-NG-1304
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This petition for review comes before the Authority pursuant to
section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
Statute (the Statute). It raises issues concerning the negotiability of
three Union proposals. For the reasons discussed below, we find
Proposals 1 and 3 to be outside the duty to bargain and Proposal 2 to be
within the duty to bargain.
II. Proposal 1
The assignment of volunteers and stay-in-schools to SSA
programs will be for the purpose of supplementing and not
replacing SSA employees. This will be accomplished consistent
with applicable laws and Government-wide rules and regulations.
A. Positions of the Parties
The Agency contends that the proposal: (1) is inconsistent with
management's right to assign work under section 7106(a)(2)(B) of the
Statute; (2) does not concern unit employees insofar as it relates to
volunteers and "stay-in-schools" /1/ who are not in the bargaining unit;
and (3) improperly limits the Agency's right to lay off and/or make
selections for appointment from any appropriate source.
The Union contends that the intent of the proposal is not to deny
management the right to hire "stay-in-schools" or to accept volunteer
services but rather to provide a statement of purpose which is
consistent with the Agency's own policy that the volunteer service will
not be used to displace any employee or to staff a vacancy which is a
normal part of SSA's work force.
B. Analysis
As understood by the Agency and as the plain language states, the
proposal provides that work assignments to volunteer and
"stay-in-school" appointees can only be made for the purpose of
supplementing SSA employees and may not be made in any way that results
in replacing SSA employees. Regarding the Agency's assertion that the
proposal does not concern unit employees, we find that the assignment of
bargaining unit work to volunteer and "stay-in-school" appointees who
are not included in the bargaining unit relates to the working
conditions of unit employees. Volunteer and "stay-in-school" appointees
work side-by-side with unit employees and are jointly engaged in the
furtherance of a common agency objective. They perform duties which
"make the office operation more efficient and the regular employees'
jobs less hectic." Union Petition at 1. Proposal 1 therefore affects
the working conditions of unit employees. American Federation of
Government Employees, AFL-CIO, Local 3748 and U.S. Department of
Agriculture, Agricultural Reserach Service, Northern States Area, 23
FLRA No. 20 (1986) (Proposals 1 and 2), petition for review filed sub
nom. Department of Agriculture, Agricultural Research Service v. FLRA,
No. 86-1533 (D.C. Cir. Oct. 1, 1986). See also Antilles Consolidated
Education Association and Antilles Consolidated School System, 22 FLRA
No. 23 (1986).
As noted above, the proposal states that work assignments to
volunteer and "stay-in-school" appointees will not be made for the
purpose of replacing SSA employees. That language is mandatory. The
proposal is therefore in the nature of a work preservation requirement.
That is, management could make no work assignments to volunteer and
"stay-in-school" appointees which might result in the loss of work for
unit employees. By limiting the Agency's ability to make assignments to
volunteer and "stay-in-school" appointees the proposal directly
interferes with management's right to assign work. We have previously
held that a proposal prohibiting the assignment of work or duties to
nonunit employees violates the Agency's right to assign work under
section 7106(a)(2)(B) of the Statute. American Federation of Government
Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
Department of Agriculture, Food Safety and Quality Service, Washington,
D.C., 9 FLRA 663, 664 (1982) (Proposal 1). See also Southwestern Power
Administration and International Brotherhood of Electrical Workers,
Local 1002, 22 FLRA No. 48 (1986) (arbitrator's award prohibiting agency
from assigning bargaining unit work to nonbargaining unit personnel
deficient as contrary to section 7106(a)(2)(B) of the Statute).
Moreover, even if, as the Union contends, the proposal simply
requires adherence to an existing Agency policy, that policy is itself
an exercise of management's right to assign work and any attempt to
incorporate that policy in a negotiated agreement would constitute an
independent limitation on that right. See National Association of Air
Traffic Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588, 591 (1981).
C. Conclusion
Proposal 1 is nonnegotiable because it conflicts with management's
right to assign work under section 7106(a)(2)(B) of the Statute. We do
not reach the Agency's other contentions as to the nonnegotiability of
the proposal.
III. Proposal 2
Union personnel will have access to SSA facilities in carrying
out their labor relations responsibilities.
A. Positions of the Parties
The Agency contends that this proposal concerns access to facilities
and services for individuals employed by the Union who are not
bargaining unit employees and as a result, does not pertain to
negotiable conditions of employment.
The Union states that Union personnel are not limited to bargaining
unit employees who hold Union positions. It contends that the proposal
establishes conditions under which the Union can accomplish its
labor-management work. The Union also argues that its proposal neither
mandates nor precludes any controls by SSA in such areas as security,
hours of work, or the like.
B. Analysis
Representation of employees in matters concerning their employment
clearly affects the working conditions of those employees. National
Treasury Employees Union and Department of Treasury, U.S. Customs
Service, 21 FLRA No. 2, slip op. at 2-3 (1986), petition for review
filed sub nom. Department of Treasury, U.S. Customs Service v. FLRA,
No. 86-1198 (D.C. Cir. March 27, 1986); American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Union Proposal
II), enf'd as to other matters sub nom. Department of Defense v. FLRA,
659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455
U.S. 945 (1982). In Wright-Patterson Air Force Base, the Authority held
that a proposal which provides union access to agency facilities for the
purpose of carrying out labor-management relations activities is
directly related to the conditions of employment of unit employees and
is within the scope of the duty to bargain under section 7117 of the
Statute. The Authority has also held that a request by a union for
sufficient personnel to allow it to carry out its representational
responsibilities under the Statute is inextricably tied to the
conditions of employment of the employees it represents. Antilles
Consolidated Education Association and U.S. Navy Department, Puerto
Rico, 21 FLRA No. 114 (1986).
Contrary to the Agency's claim, Proposal 2 is not outside of the duty
to bargain because it provides for access to agency facilities for
individuals employed by the Union who are not SSA employees. The
Union's request for access to Agency facilities for designated
representatives and personnel directly affects the Union's ability to
carry out its representational responsibilities and therefore is
inextricably tied to the conditions of employment of unit employees.
C. Conclusion
Proposal 2 is within the Agency's duty to bargain.
IV. Proposal 3
Each employee, upon request, will be granted up to one day's
administrative leave for bereavement purposes for an immediate
relative or dependent.
A. Positions of the Parties
The Agency contends that the proposal attempts to add to the pay and
allowances of employees without specific authorization by law and
conflicts with 5 U.S.C. Section 5536.
The Union contends that the proposal would allow an employee, in the
case of an immediate relative's or dependent's death, administrative
leave for one day to attend the funeral or memorial service, make
necessary arrangements, or console another member of the family.
B. Analysis
Chapter 63 of title 5 of the United States Code governs the
accumulation of both annual and sick leave and further authorizes
agencies "to grant administrative leave excusing an employee from work
when it is in the public interest." 5 U.S.C. Section 6326(c). 5 U.S.C.
Section 6311 states that "(t)he Office of Personnel Management may
prescribe regulations necessary for the administration of this
subchapter." The coverage of the relevant OPM regulations is coextensive
with that of chapter 63, covering most employees in the executive branch
of Government. The OPM regulations governing leave are, therefore,
"Government-wide" within the meaning of section 7117(a)(1) of the
Statute. See American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21
FLRA No. 104 (1986) (Proposal 15).
In American Federation of Government Employees, Local 2094, AFL-CIO
and Veterans Administration Medical Center, New York, New York, 22 FLRA
No. 81 (1986) (Proposal 7), petition for review as to other matters
filed sub nom. American Federation of Government Employees, AFL-CIO,
Local 2094 v. FLRA, No. 86-1521 (D.C. Cir. Sept. 22, 1986), we held that
a proposal providing for administrative leave for personal emergency or
illness was inconsistent with Government-wide regulations, including FPM
chapter 630, subchapter 3-4.a(2), governing the administration of leave.
We found that annual and sick leave were intended to cover the
circumstances described in the proposal in that case and that the
governing regulations did not contemplate personal emergencies or
illness as justifiable grounds for granting administrative leave in lieu
of annual leave or sick leave. Likewise, Proposal 3, in this case, is
inconsistent with OPM regulations governing leave. Those regulations do
not contemplate personal bereavement as justifiable grounds for granting
administrative leave in lieu of annual leave. /2/ Specifically, FPM
chapter 630, subchapter 3-4.a(2) provides that annual leave is intended
for use in situations which include "a death in the employee's family."
Thus, for the reasons stated more fully in Veterans Administration
Medical Center, New York, New York, 22 FLRA No. 81, we find that
Proposal 3 is nonnegotiable because it is inconsistent with
Government-wide regulations within the meaning of section 7117(a)(1).
See also Federal Deposit Insurance Corporation, Madison Region, 21 FLRA
No. 104 (1986) (Proposal 15), in which we held that administrative leave
is to be granted for only short periods of time and for limited
purposes, not including personal business.
C. Conclusion
Proposal 3 is outside the Agency's duty to bargain under section
7117(a)(1) because it is inconsistent with an applicable Government-wide
regulation.
V. Order
The petition for review as to Proposals 1 and 3 is dismissed. The
Agency shall upon request, or as otherwise agreed to by the parties,
bargain on Proposal 2. /3/
Issued, Washington, D.C., February 10, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) "Stay-in-schools," as explained by the Union, are high school
and/or college students hired by the Social Security Administration to
perform miscellaneous clerical duties.
(2) We find that Proposal 3 is not restricted to situations where
funeral leave might be granted in accordance with 5 C.F.R. Section
630.804. The Union rejected a management proposal reflecting funeral
leave available under that section. Agency Response to Petition for
Review at 5.
(3) In finding that Proposal 2 is negotiable, we express no opinion
as to its merits.